Supreme Court won't hear appeal of night-hunting convictions

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The Supreme Court said Thursday it won't hear an appeal by three New Brunswick aboriginal men convicted of hunting at night with a light.

Keeping to custom, the top court didn't provide a reason for its decision.

The case dates back to November 1999, when game wardens pulled over three men who were driving along a forest road outside of Fredericton shortly before 2 a.m. local time. The men, who are all members of the Maliseet First Nation at St. Mary's, were shining a floodlight into the forest and had rifles and ammunition in the vehicle.

Richard Polches, Jeffrey Polches and Jason Brooks were charged with hunting with a light, which is illegal under the provincial Wildlife Act.

The men told the game wardens they were observing the wildlife for their own amusement and to pass the time.

The men's lawyer argued a treaty signed in the 1720s gave the Maliseet people the right to hunt for food. He said the men were using the light to observe the animals' movement patterns in order to hunt them in the daylight.

Critics argued the men were deer-jacking, a practice they said was unsafe and unfair.

The men were found not guilty at trial. That decision was upheld by the Court of Queen’s Bench in Fredericton.

However, in 2006, the New Brunswick Court of Appeal backed the Crown and found the three men guilty.

The following year, the Supreme Court ordered the N.B. Court of Appeal to hear the case again in light of a 2006 Supreme Court decision that gave B.C. First Nations the right to hunt deer at night.

In that 4-3 decision, the top court overturned a B.C. lower court ruling that convicted two members of the Tsartlip First Nation of Vancouver Island of hunting at night, illegal under the province's Wildlife Act.

However, the Supreme Court said the men's treaty rights prevailed over provincial law because an 1852 treaty granted modern Tsartlip people the right to hunt using traditional methods, which included hunting at night.

The N.B. Court of Appeal re-heard the case and again found the Maliseet men guilty.